B.C. First Nations disappointed Supreme Court won’t hear their appeal of Trans Mountain project

A trio of B.C. First Nations expressed disappointment on Thursday after learning that Canada's Supreme Court denied its request to challenge a Federal Court of Appeal decision on the expansion of the Trans Mountain pipeline.

The First Nations leadership – Squamish, Tsleil-Waututh and Coldwater – now say they will be turning their attention to other possible legal options.


Chris Lewis, an elected councilor and a spokesman for Squamish Nation, said that dismissing the case sends a message "that consultation, accommodation and reconciliation with indigenous peoples is not a matter of national interest".

"To say that we are disappointed is an understatement," he said.

The Supreme Court determines which cases he hears. It gives no reason when it rejects claimants who want to appeal the decisions taken by the lower courts.


In its request, the First Nations asked the Supreme Court to review a decision by the Federal Court of Appeal in February that dismissed the challenge to the pipeline expansion, which was approved by Ottawa a year ago for the second time.

They asked the Court of Appeal to overturn the second approval for the Trans Mountain expansion, arguing that the federal government had failed to hold meaningful consultations with them about the project. The Ottawa-owned multi-billion dollar project would expand an existing pipeline from the Edmonton area to Burnaby, B.C.


The pipe for the expansion of the Trans Mountain pipeline is unloaded in Edson, Alta., In June 2019. The billion-dollar Ottawa-owned project would expand an existing pipeline from the Edmonton area to Burnaby, B.C. (Jason Franson / Canadian Press)

The Court of Appeal decided that it would not interfere with the approval of the project. In its decision, the court summed up First Nations positions as trying to "impose a standard of perfection" on the consultation process.

The court applied new case law when assessing whether Canada had fulfilled its constitutional obligations to First Nations. This raised broader concerns among applicants about the legal standard for assessing the appropriateness of the consultation and accommodation.

Eugene Kung, a lawyer for the West Coast Environmental Law, described the Court of Appeal's decision as creating "a diluted consultation review process".


Chief Leah George-Wilson, of the Tsleil-Waututh nation, said: "What is happening is more than just a risky oil and pipeline project. We see this as a major setback for reconciliation."


She said her First Nation's decision to reject the expansion of the pipeline "will not be changed by a Canadian court decision."

"Our own indigenous law is what brings us to where we are today," she said.

Regulatory processes still in progress

The First Nations leadership said it will now be turning its attention to other possible legal options. They did not say what those options would be during a news conference on Thursday, but Kung said there are still regulatory processes underway, such as detailed route hearings by Canada's energy regulator.

The route hearings are taking place for a segment of the expansion project through the Chilliwack area, where owners, a parent advisory council and Semá: First Nation are expressing opposition to the route for concerns about the impact on water aquifers sweet and cultural sites.

The hearings on the route do not allow debate over the approval of the pipeline, but they do decide whether Trans Mountain is seeking the "best possible route" for the pipeline twinning.

Chief Lee Spahan of Coldwater First Nation on the Coldwater River last year. (Nick Purdon / CBC)

One of the candidates for the Supreme Court case, Coldwater, has been pushing for years to change the pipeline's expansion route to avoid the passage of the aquifer on which residents depend to drink water.

"Despite today's decision, there are other legal actions that we can take if our water is not protected," Coldwater chief Lee Spahan said in a press release.

As the First Nations expressed disappointment at Thursday's court decision, others publicly welcomed the news, including politicians in Alberta and Ottawa.

Trans Mountain CEO Ian Anderson wrote in a statement on Thursday: "We are satisfied with the court's decision to dismiss these requests and confirm the Federal Court of Appeal's decision."

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